Fraudulent calumny in Wills and Probate: a hidden threat to testamentary freedom

The principle of testamentary freedom allows individuals in England and Wales to dispose of their estate as they wish upon death. However, this freedom is not absolute and can be undermined by fraudulent calumny a form of deceit that may render a will invalid. Though relatively rare in probate disputes, fraudulent calumny is a serious allegation and a complex legal doctrine with deep implications for the integrity of wills.

What is fraudulent calumny?

Fraudulent calumny occurs when a person (usually a beneficiary or close associate) deliberately poisons the mind of a testator against another potential beneficiary by making false and malicious statements, knowing them to be untrue or being reckless as to their truth. The aim is to induce the testator to exclude that person from their will, thereby altering the distribution of the estate through fraud.

It is not enough that the testator held an unfavourable opinion of the excluded party; what matters is how that opinion was formed. If it was due to dishonest manipulation, the will (or the relevant part of it) can be declared invalid.

Legal foundations and leading cases

The principle is rooted in equitable doctrines and has been recognised in several key cases:

Re Edwards [2007] EWHC 1119 (Ch): Lewison J outlined the elements needed to prove fraudulent calumny, emphasising the requirement for intentional deception and the need to show that the testator would likely not have changed their will were it not for the falsehood.

Whittle v Whittle [2022] EWHC 925 (Ch): The court set aside a will after finding that the deceased had been manipulated into believing falsehoods about one child by another. The judge stressed that a "deliberate poisoning of the testator's mind" was needed.

If a claim for fraudulent calumny is to be successful, the court must be satisfied, on the balance of probabilities, that:

1. A person made false representations about another.
2. Those statements were made dishonestly or recklessly.
3. The statements were a material cause of the testator’s decision to exclude the person from their will.

Burden of proof and evidential challenges

Claims of fraudulent calumny are notoriously difficult to prove. The burden lies on the person alleging the fraud, and the evidence must be compelling, especially since the central witness, the testator, is deceased.

Courts look for:

• documentary evidence (letters, emails, texts);
• witness testimony about the testator's state of mind and relationships; and
• patterns of behaviour that indicate undue influence or manipulation.

A successful claim can result in:

• the impugned will being set aside;
• an earlier will being revived; and
• the estate being distributed under the intestacy rules if no prior will exists.

Distinction from undue influence and capacity challenges

While often confused with undue influence, fraudulent calumny is distinct: undue influence involves coercion or pressure on the testator’s volition, whereas fraudulent calumny attacks the testator’s understanding or perception of facts, rather than their will or agency.

A claim of lack of testamentary capacity may also arise in parallel but addresses different issues—namely, the testator’s ability to make a will rather than the truthfulness of the information on which they relied.

Practical implications and safeguards

To minimise the risk of fraudulent calumny, solicitors should record contemporaneous notes of instructions and reasons for excluding beneficiaries and testators should be encouraged to write a detailed letter of wishes.

Professional advice and independent witnesses can support the will’s validity later.

For those contesting a will, legal advice is essential to evaluate whether fraudulent calumny can be credibly argued or whether other grounds may be more appropriate.

Conclusion

Fraudulent calumny is a powerful but rarely successful ground for contesting a Will.  Its seriousness lies in the challenge it poses to the core value of testamentary freedom and the integrity of the probate system.  As courts continue to examine these claims with caution, the need for robust evidentiary support remains critical in uncovering manipulative deceit that may otherwise go unpunished.

If you require any assistance with what you think may be fraudulent calumny, read more about our expert wills and probabte law team and please do not hesitate to contact Emma Facey.